Washington Supreme Court Reviews "Other Statute" Exemption in Ruling on Release of Sex Offender Records Under the Public Records Act

In Doe v. Washington State Patrol, the Washington Supreme Court held that the state’s community notification statute concerning registered sex offenders is not an “other statute” exemption under the Washington Public Records Act (PRA).

The requester in Doe sought records pertaining to level I registered sex offenders (those classified as least likely to reoffend) from the Washington State Patrol and the Washington Association of Sheriffs and Police Chiefs (WASPC). The agencies sent notice of the scheduled disclosure to affected sex offenders, who sued to prevent release. The trial court agreed with the plaintiffs that level I sex offender registration records are exempt from disclosure under the PRA’s “other statute” exemption because the community notification statute, RCW 4.24.550, provided the exclusive mechanism for public disclosure of sex offender records. The “other statute” exemption allows withholding of records where the PRA “or other statute . . . exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1). The trial court issued an injunction preventing release of the records.

In a 7-2 decision, the Washington Supreme Court reversed. The court first observed that an “other statute” that exempts disclosure “does not need to expressly address the PRA, but it must expressly prohibit or exempt the release of records.” Opinion at 7. The court explained that the community notification statute was not prohibitory, but rather is framed in terms of what an agency is permitted to, or must, do. Opinion at 13. After discussing prior court decisions construing the “other statute” exemption, the court concluded:

The PRA, and our case law surrounding it, demands that an “other statute” exemption be explicit. Where the legislature has not made a PRA exemption in an “other statute” explicit, we will not. Because of the presumption of disclosure under the PRA, the lack of any prohibitory language—save for a mandate against confidentiality—or explicit exemption in RCW 4.24.550 and this state’s precedent in “other statute” cases, we hold that RCW 4.24.550, specifically RCW 4.24.550(3)(a), is not an “other statute” under RCW 42.56.070(1) and that level I sex offender registration information is subject to disclosure under a PRA request.

Opinion at 21-22.

The court also determined that, although the requester prevailed, she was not entitled to penalties or attorney’s fees under the PRA. Because the Washington State Patrol and WASPC had taken the position that the records were subject to disclosure, the requester had not prevailed “against an agency” under RCW 42.56.550(4), but rather had prevailed against a private party seeking to enjoin disclosure. Opinion at 23.

In a dissenting opinion, two justices asserted that the majority’s opinion articulates a “brand new and extremely rigid interpretation” of the PRA’s “other statute” exemption, and allows people to circumvent the community notification statute’s clear disclosure limits by simply filing a public records request.

What is an Agency's Obligation When a Records Request May Suggest Requester's "Commercial Purpose"?

A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

The Court then determined if the request was for “commercial purposes”. The Freedom Foundation asserted that the request was for communication to workers about their constitutional rights, and not to solicit contributions. The Court applied the following definition in ruling in favor of the Foundation’s request: “commercial purposes” in RCW 42.56.070(9) includes a business activity by any form of business enterprise intended to generate revenue or financial benefit. The Court found that the Foundation was not seeking to generate revenue or financial benefit.

In its decision, the Court added to an agency’s already-difficult burden in responding to PRA requests. Because RCW 42.56.070(9) expressly states that a government agency “shall not” provide access to lists of individuals requested for commercial purposes, the Court determined there is “some burden on the agency to avoid disclosing lists of individuals to a party intending to use the list for commercial purposes.” While the PRA gives no specific guidance, the Court held that an “agency must investigate when it has some indication that the list might be used for commercial purposes. Whether an agency must investigate will depend on a case-by-case determination based on the identity of the requester, the nature of the records requested, and any other information available to the agency.” And, an agency “must at least require a party requesting a list of individuals to state the purpose of the request.” The Court gives no further guidance.

The Washington Attorney General model rules advise that “[a]n agency may require a requestor to sign a declaration that he or she will not put a list of individuals in the record to use for a commercial purpose.” WAC 44-14-06002(6) (citing AGO 1988 No. 12 at 10-11 (agency could require requestor to sign affidavit of noncommercial use)). The Court concluded this is no longer sufficient. The agency must additionally require the declarant to state the purpose of the request if RCW 42.56.070(9) is implicated:

DSHS suggests that if an agency has an obligation to investigate, an affirmation from the requesting party that the intended use of the list is not for commercial purposes is sufficient. The problem with such an affirmation is that it allows the requesting party to control whether a list of individuals will be released without any independent inquiry by the agency. Therefore, merely requiring an affirmation from the requesting party is not sufficient to satisfy an agency’s obligation to investigate under RCW 42.56.070(9).

In light of this ruling, if an agency fails to obtain a declaration from the requestor that both disclaims use for commercial purposes and states the requestor’s intended purposes, then releasing the record risks waiving immunity under RCW 42.56.060 if the agency gets it wrong. And, a wrongful withholding (whether or not founded on a declaration) could still subject the agency to penalties and fees. A declaratory judgment action might be the agency’s only recourse. Otherwise, there may be too much risk of agency exposure under the PRA for a wrong decision and for withholding of requested records.

In a 5-4 decision, the Washington Supreme Court unscrews the hinges from the already open door on PRA penalties

In Wade’s Eastside Gun Shop, Inc. v. Department of Labor & Industries, the Washington Supreme Court holds that trial courts have discretion to impose Public Records Act penalties on a “per page” basis. The Court considered a number of factors in affirming the trial court’s considerable discretion. Penalties are assessed for withholding “such public record,” and the broad definition of a “public record” includes any “writing” (which, in turn, includes “all papers”). “A single page fits within the plain language of this broad definition.” The PRA also expressly provides that the penalty determination “shall be within the discretion of the court.” Finally, modern public records may be difficult to segregate under any bright-line rule (e.g., metadata, compiled transcripts of individual text messages, etc.). Ultimately, the Court reasoned, trial courts need flexibility “to respond appropriately to PRA violations in this age of rapidly advancing technology.” Under Wade’s, a trial court will continue to enjoy broad discretion to apply penalty formulas that result in a penalty amount that the court believes is appropriate to a particular PRA violation.

The Court in Wade’s also held that Department of Labor & Industries investigation records fall outside of the court-made “categorical” exemption to disclosure of records in an open and active police investigation file. Unlike criminal investigations where the early release of information might “impede the apprehension of an as-yet-unknown suspect,” employers subject to L&I civil investigations already know they are being investigated. There is little risk to losing the suspect. Instead of relying on the “categorical” exemption, L&I must prove that withholding the record is essential to effective law enforcement on the facts of the case under RCW 42.56.240(1). L&I must similarly explain why the exemption applies in its initial denial statement to the PRA requestor.

The Court concluded by detailing several ways L&I improperly delay releasing records after providing third party notice. Providing 15 days for a third party to obtain a court order to enjoin a record’s release was too long, in part, because L&I delayed many months in initially notifying the third party. Extending that injunction window without a court order as a “courtesy” to third parties when L&I believed the records were not exempt was also improper. Finally, L&I should have been ready to release the records on the day the trial court compelled disclosure. Absent temporary relief for time to appeal, a trial court may assume that the agency should have been diligently preparing the records for immediate release. Here, L&I incurred nearly $150,000 in penalties for the 9-day period starting with the trial court’s order compelling release and ending with the agency’s final production.

New records retention schedule for Washington State law enforcement agencies

The Local Records Committee was created by Chapter 41.14 RCW and its 3 members are the State Archivist and representatives of the State Auditor and Attorney General offices. The Committee approved on December 3, 2015 a new records retention schedule for Washington State local law enforcement agencies. These changes take effect immediately. The modifications to the retention schedule are minor, with most clarifying confusing or unclear sections. For a summary of the changes, click here.

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Administrative Agency "Within the Judicial Realm" Not Subject to PRA, According to New Court Decision

In West v. Washington State Association of District and Municipal Court Judges, a state agency, 2015 WL 6680205 (Div. I, November 2, 2015), Division I held that the Washington State Association of District and Municipal Court Judges (the Association) is a judicial branch agency for purposes of the Public Records Act (PRA), chapter 42.56 RCW. Although the Association does not hear and decide cases, it conducts some of the traditional administrative business of the courts and by statute reports on the business of the courts to the legislature and to the Supreme Court. RCW 3.70.040. This function places the Association squarely “within the judicial realm,” and therefore outside the scope of the PRA, under the test developed in Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

In Nast, the Supreme Court held that the King County Department of Judicial Administration was not subject to the PRA because “its function as custodian for court case files places it within the judicial realm.” 107 Wn.2d at 305. Thus the court took a functional view to determine whether an agency, otherwise within the purview of the PRA, was within the judiciary and for that reason not subject to the requirements of the PRA.

Like the Department of Judicial Administration in Nast, the Association in West exists solely to perform statutory functions that are “all part and parcel of the type of administrative work that judges do and have always done.” Given that its functions are “judicial,” the Association is outside the realm of the PRA and its rules do not apply. Note that in Nast, the common law right of access to court case files controlled over the more general language of public disclosure laws applicable to state and local governments, and in subsequent cases, courts held that those disclosure laws do not to apply to the judicial branch at all. See City of Federal Way v. Koenig, 167 Wn.2d 341, 345-46, 217 P.3d 1172 (2009), citing Spokane & E. Lawyer v. Tompkins, 136 Wn. App. 616, 621–22, 150 P.3d 158 (upholding denial of public records request for correspondence from county judges to the bar association regarding local lawyers); Beuhler v. Small, 115 Wn. App. 914, 918, 64 P.3d 78 (2003) (upholding denial of public records request for a computer file containing a judge's notes on prior sentences he had imposed).

Updated Edition of the Washington Open Government Resource Manual

The Washington State Office of the Attorney General has issued a new addition of its Open Government Resource Manual. The 2015 manual provides information on the Open Public Meetings Act (OPMA), Chapter 42.30 RCW, and the Public Records Act (PRA), Chapter 42.56 RCW (through October 1, 2015).

Click here for a PDF version of the manual. Click here for an online version. 

This is an update of the Attorney General's 2007 Manual. 

Open Meetings Laws Not Applicable To Informal Discussion Groups

In Citizens Alliance for Property Rights Legal Fund v. San Juan County (October 1, 2015), the Washington Supreme Court held that informal discussion groups are not “governing bodies” or “committees thereof” subject to the state’s open meetings laws. Prior to San Juan County updating its critical areas ordinances (CAO), a group of county council members, staff, and consultants met approximately 26 times to discuss implementing the CAO updates. Every aspect of the CAO Team was informal: the County Council did not formally create it; members were not formally appointed; and the Team had no formal purpose, no designated responsibilities, and no official relationship to other county departments. Further, the County’s governing body, the County Council, held approximately 100 different meetings, workshops, hearings, or joint hearings regarding the CAO update, all of which were presumably open to the public.  

Nevertheless, Citizens Alliance sued to invalidate the ordinances, arguing the CAO Team improperly discussed the CAO update in meetings that did not comply with the Open Public Meetings Act (OPMA). The Court of Appeals ruled against Citizens. Citizens Alliance for Property Rights Legal Fund v. San Juan County, 181 Wn. App. 538 (2014). On further review, the Supreme Court also rejected Citizens’ arguments, emphasizing that the OPMA “does not extend to advisory committees and other entities that do nothing more than conduct internal discussions and provide advice or information to the governing body.” The Court then made a number of holdings clarifying the OPMA’s scope:

  • The Court firmly rejected the “negative quorum” doctrine. The OPMA’s requirements apply to a governing body’s meetings only when a majority of its members are present. Having enough members present to block legislation is insufficient on its own. Here, even though 3 of 6 Council members may have been present at some of the CAO Team meetings (and could therefore have defeated future legislation), the CAO Team never had a 4 member majority of the Council present.  
  • For serial telephone and email communications to trigger the OPMA’s requirements, a majority of the governing body must participate in the communications and collectively intend to transact business. Passive receipt of emails does not count. Relaying telephone conversations does not count if the members on the call do not intend for the conversation to be incorporated into a later meeting.  
  • A “committee” is subject to the OPMA only when the governing body acts to create the committee and only if that committee “acts on behalf of the governing body.” In other words, the OPMA applies only when a committee exercises decision-making authority on behalf of the governing body that authorized the committee or ratified its actions. Here, the CAO Team did not implicate either element. The County Council did not create the Team, and the Team did not exercise decision-making authority for the Council. Gathering information, conducting internal discussions, and providing information to a governing body does not arise to “acting on behalf of the governing body.”  

Managing the Risks of Open Municipal Data

American cities possess a treasure trove of information about their residents, employees, and infrastructure. As state and local governments come under increasing pressure to project greater transparency, cities are beginning to open the doors to their data like never before. Recently, a team of multidisciplinary researchers affiliated with the University of Washington conducted one of the first sustained assessments of an open municipal data system. The researchers worked closely with the City of Seattle to understand its current procedures and to generate recommendations intended to help the city manage the risk inherent in opening up its data.

A link to the article, entitled "Push, Pull, and Spill: A Transdisciplinary Case Study in Municipal Open Government" can be found here

Agency's Failure to Engage in "Any Serious Independent Analysis" of Validity of Exemption Status Supports a Finding of Bad Faith Under the PRA

In Adams v. Washington State Department of Corrections, Division II of the Court of Appeals held that for purposes of penalty calculation for agencies that do not comply with PRA requests under RCW 42.56.565(1), an agency will be punished for “bad faith” if it fails to engage “in any serious independent analysis of the exempt status of documents.” The Court of Appeals affirmed the findings of the trial court that found that the DOC’s justification for withholding a prisoner’s state and federal rap sheets was insufficient, and that the DOC engaged in “bad faith” under the PRA by failing to. 

In this case, Adams, a prisoner, submitted a public records request to the DOC for his inmate central file—a collection of documents that contained, among other items, an offender’s criminal history obtained from both state and federal authorities, otherwise known as “rap sheets.” The DOC refused to produce portions of the rap sheets requested, some of which were obtained from ACCESS, a federal database, arguing that the records were exempt from disclosure under RCW 4.56.070(1) and federal laws. The DOC also argued that non-conviction criminal history information was for law enforcement use only, and therefore exempted from disclosure.

Only a few days before Adams filed his complaint alleging PRA violations, the Spokane County Superior Court held in Chester v. Department of Corrections that similar information, such as Washington State and FBI criminal rap sheets, were not exempt from disclosure under the PRA. Ten months later, the DOC filed a motion for show cause hearing against Adams, noting that it still intended to withhold 21 pages of Adams’s Washington and FBI rap sheets. The DOC claimed that disclosure would violate ACCESS use agreements. At the time, the DOC’s only support for this argument was the stated position of the Washington State Patrol and the FBI.

The trial court found the DOC’s justification insufficient to withhold disclosure. Upon questioning, the DOC could not point to any evidence that the ACCESS use agreement prohibited disclosure of the rap sheet information. The trial court also noted that the DOC had engaged in only a cursory investigation of the merits of its exemption justification, limiting its investigation to only a few short e-mail exchanges with state patrol and the FBI. The trial court ordered the disclosure of the rap sheet information and assessed penalties on the DOC for withholding the records in bad faith.

The DOC appealed, arguing that, standing alone, reliance on an invalid basis for nondisclosure was not sufficient for finding bad faith, as long as the basis was not “farfetched.” In support of this contention, the DOC argued that federal law prohibited them from disclosing certain information obtained from a federal criminal database (III System Information) to the individual who is the subject of that information. The court disagreed, noting a long line of cases that held that an individual is entitled to such information under the relevant federal authorities. The court also observed that the DOC both cited the wrong federal statues and misread the correct ones in a manner that was “inconsistent with longstanding federal law authorizing inmate access” to the inmate’s FBI criminal history information. The court found that the DOC justification or withholding the state criminal history information, WAC 446-20-090, was similarly indefensible, as this regulation concerned a right that was only supplementary to those contained in the PRA.

Although the court held that the burden was still on Adams to prove bad faith under RCW 42.56.565(1), the court affirmed the trial court’s finding that the DOC improperly withheld Adams’s criminal history information in bad faith by continuing to withhold Adams's records for more than 10 months after the analogous Chester decision was entered, and for failing to conduct its own independent verification of the validity of its exemption claims. The court awarded Adams his costs on appeal.

Text Messages on Private Devices Subject to Washington Public Records Act

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

The Court provided public officials a method to submit an affidavit to separate personal from public messages:

“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.